A criminal court judgment is not necessarily final. Under certain conditions, you have the possibility to challenge it and lodge a legal remedy.
Die wichtigsten Rechtsmittel gegen Strafurteile sind die Nichtigkeitsbeschwerde und die Berufung. Welche davon im konkreten Fall zulässig ist, hängt davon ab, welches Gericht entschieden hat und welche Punkte bzw. Bestandteile des Urteils angefochten werden sollen. Bereits im Zeitpunkt der Urteilsverkündung ist jedoch entscheidend, dass ein Rechtsmittel fristgerecht und formal richtig angemeldet wird.
If this opportunity is missed, the judgment becomes final and a review is, in principle, no longer possible. This article provides an overview of the ordinary legal remedies available against a criminal judgment, how they differ and which deadlines must be observed.
Please note: This article is intended as general guidance and does not constitute legal advice. The lodging and substantiation of legal remedies against criminal judgments are highly sensitive, formalistic and time‑critical matters. If you or someone close to you has been convicted by a court, you should seek individual legal advice without delay. MPW Rechtsanwälte provides tailored advice and representation in this complex area.
What happens after the pronouncement of a judgment?
In criminal proceedings, judgments are pronounced orally during the main hearing, after which a written version of the judgment is served on the parties.
After the oral pronouncement of the judgment, the parties generally have the following three options:
- Acceptance of the judgment (waiver of legal remedies)
The defendant accepts the judgment. If the public prosecutor’s office (or any other party to the proceedings, such as a private participant) also refrains from lodging a legal remedy, the judgment becomes final and the sentence may be enforced.
Note: Section 57(2) of the Austrian Code of Criminal Procedure provides: ‘A waiver of legal remedies against the judgment made by the accused without the presence of defence counsel and without prior consultation with counsel shall have no effect.’ This means that a defendant who is not represented by counsel cannot make a valid waiver of legal remedies immediately after the pronouncement of the judgment (RIS‑Justiz RS0133227).
- Lodging of a legal remedy
The defendant, either personally or through defence counsel, lodges a legal remedy immediately after the oral pronouncement of the judgment. The judgment therefore does not become final. Once the written version of the judgment has been served, the time limit for substantiating the legal remedy begins to run.
- Taking time for consideration (no declaration regarding legal remedies)
The defendant has three days to consider whether to lodge a legal remedy. If the defendant does not make any declaration within this period, the judgment becomes final, provided that no other party to the proceedings has lodged a legal remedy. However, if a declaration of intention to appeal that complies with the formal requirements is made within this period, the judgment does not become final, and once the written version of the judgment has been served, the time limit for substantiating the lodged legal remedy begins to run.
Note: Pursuant to Section 84(2) of the Code of Criminal Procedure, unless otherwise provided in specific cases, legal remedies (or the notification thereof) may be submitted to the court in writing, by fax, or via electronic legal communication (Section 89a of the Court Organisation Act).
Caution: Submission by e‑mail is not permitted. Transmission by e‑mail does not constitute a valid form of electronic legal communication.
What legal remedies are available against judgments delivered by a single judge?
Against judgments delivered by a single judge at a district court or at a regional court, only one legal remedy is generally available in criminal proceedings: the appeal. An appeal results in a review of the decision by a higher court and thus leads to a decision at second instance.
An appeal against a district court judgment—using the appropriate legal remedies
Against judgments of the district court delivered against a defendant who was present at the hearing, only an appeal is admissible under Sections 463 et seq. of the Code of Criminal Procedure. The appeal must be lodged with the district court and is decided by the competent regional court in whose judicial district the district court is located. In this context, the regional court acts as the appellate court at second instance.
In proceedings before the district court, the appeal takes the form of a so‑called full appeal. This means that it may be directed against various parts of the judgment, namely on the grounds of existing nullity grounds, against the finding on guilt, against the finding on the sentence, as well as against the determination of civil claims or orders relating to property (see Section 464 of the Code of Criminal Procedure). Accordingly, an appeal on grounds of nullity, an appeal on guilt, an appeal on sentence and an appeal concerning civil claims are, in principle, possible. Under Section 479 of the Code of Criminal Procedure, no further ordinary legal remedy is admissible against the decision of the regional court on such an appeal, meaning that this decision is final.
The appeal against a judgment of the regional court sitting as a single judge
Under Section 489(1) of the Code of Criminal Procedure, an appeal is the only remedy available against judgments of the regional court sitting as a single judge. The appeal must be lodged with the regional court. The locally competent higher regional court decides the case as the appellate court at second instance.
Die Berufung ist auch im landesgerichtlichen Einzelrichterverfahren als sogenannte „volle Berufung“ ausgestaltet. Das bedeutet, dass sie sich die Berufung auch hier gegen verschiedene Punkte des Urteils richten kann, nämlich wegen vorliegender Nichtigkeitsgründe, wegen des Ausspruchs über die Schuld, wegen des Ausspruchs über die Strafe sowie wegen des Ausspruchs über privatrechtliche Ansprüche bzw. vermögensrechtliche Anordnungen (vgl. § 464 StPO). Sohin sind prinzipiell Berufung wegen Nichtigkeit, Berufung wegen Schuld, Berufung wegen Strafe und Berufung wegen der privatrechtlichen Ansprüche bzw. vermögensrechtliche Anordnungen möglich.
Under Section 479 of the Code of Criminal Procedure, no further ordinary legal remedy is admissible against the decision of the locally competent higher regional court on such an appeal, with the result that this decision is final.
Judgment in absentia
Under certain conditions, criminal judgments of the district court or of the regional court sitting as a single judge may also be delivered in the defendant’s absence. In such cases, additional special rules frequently apply. In some circumstances, it is indeed possible to have judgments in absentia set aside. However, even in these situations, it is strongly advisable to obtain professional criminal‑law advice as quickly as possible in order to maximise the chances of having a judgment in absentia set aside:
What legal remedies are available against judgments of lay‑judge courts and jury courts?
In the case of judgments delivered by lay‑judge courts and jury courts, the system of legal remedies differs significantly from that applicable in single‑judge proceedings. In proceedings before lay‑judge and jury courts (the so‑called ‘collegial court jurisdiction’), a distinction must be made between the nullity appeal and the appeal (see Sections 280 et seq. of the Code of Criminal Procedure).
The nullity appeal
The nullity appeal is the central legal remedy in proceedings before lay‑judge courts and jury courts when it comes to the review of errors of law and serious procedural defects. Jurisdiction to decide on the nullity appeal lies with the Supreme Court.
However, a nullity appeal is admissible only if one of the exhaustively regulated grounds of nullity provided by law is present. In the case of a lay‑judge court, these grounds are set out in Section 281 of the Code of Criminal Procedure; in the case of a jury court, they are set out in Section 345 of the Code of Criminal Procedure, whereby the provision governing the substantive content of a nullity appeal against judgments of the jury court refers (in part) to the rules on the substantive content of a nullity appeal against judgments of the lay‑judge court.
Typical cases of nullity include incorrect compositions of the court, violations of essential procedural rules, missing or insufficient findings, contradictory findings on decisive facts, missing or inadequate reasoning of the judgment, as well as errors in the application of criminal law or the absence of decisive findings.
In jury proceedings, some of the grounds of nullity available in other contexts are not applicable; however, due to the structure of jury trials, other specific grounds of nullity are available. These include, for example, errors in the formulation of the questions put to the jury, incorrect legal instructions given by the presiding judge, or an unclear or contradictory verdict delivered by the jury. The grounds of nullity for judgments in jury trials are set out in Section 345 of the Code of Criminal Procedure and may be asserted by way of a nullity appeal.
It is also important that every nullity appeal must be clearly and precisely reasoned. It is not sufficient merely to assert in general terms that a judgment is wrong or void. Instead, it must be specified exactly which statutory ground of nullity is present and in what the specific error consists. Moreover, for numerous grounds of nullity, it must be substantiated why and to what extent the alleged nullity has adversely affected the defendant. If the nullity appeal does not meet these requirements, it may be dismissed on formal grounds alone.
Legal remedies: the appeal in collegial‑court proceedings
In addition to the nullity appeal, an appeal may also be lodged in proceedings before lay‑judge courts and jury courts. However, this appeal has a more limited function than in single‑judge proceedings.
The appeal is also structured as a so-called ‘full appeal’ in proceedings before a single judge at the Regional Court. This means that, in this context too, the appeal may be directed against various aspects of the judgment, namely on the grounds of nullity, the finding of guilt, the sentence imposed, and the ruling on claims under private law or orders relating to property (see Section 464 of the Code of Criminal Procedure). Anyone wishing to argue that the sentence is too severe or that a decision regarding a civil claim (e.g. for damages) is incorrect may challenge this by lodging an appeal.
Criticism of the assessment of evidence, which would otherwise be permissible in an appeal on guilt in district‑court or single‑judge proceedings, is not admissible in collegial‑court proceedings. Jurisdiction to decide on the nullity appeal lies with the Supreme Court. The Supreme Court may also decide on the appeal. However, in many cases, when a nullity appeal is dismissed, the appeal is forwarded to the Higher Regional Court for decision.
What time limits apply to appeals and nullity appeals?
Strict and non‑extendable time limits apply to legal remedies against criminal judgments. These time limits must be strictly observed. If a party misses the deadline, the court will dismiss the legal remedy.
Registration period
The most important initial time limit is the notice‑filing period. As a rule, an appeal and a nullity appeal must be filed within three days. This period begins to run from the oral pronouncement of the judgment if the defendant was present. Pursuant to Section 84(1)(3) of the Code of Criminal Procedure, the day of pronouncement does not count. The period begins only at 00:00 hours on the following day. Saturdays, Sundays, public holidays and Good Friday generally have no effect on the beginning or running of this period. If a time limit expires on such a day, the next working day is deemed the final day of the period.
As a rule, the notice must be filed with the trial court. However, timely filing with the appellate court may also preserve the time limit.
Period for submitting the full appeal
Upon service of the written version of the judgment, the period for submitting the full appeal generally begins to run. For both the nullity appeal and the appeal, this period is generally four weeks.”
For the beginning of the time limit, the decisive factor is when the written version of the judgment is served on the defendant (or on his defence counsel). Only once the written reasons for the decision are available is it possible to provide a substantiated statement of grounds.
What is the difference between an appeal and a nullity appeal?
The nullity appeal may be lodged only in collegial‑court proceedings (lay‑judge or jury courts). It is directed against nullities in the judgment or against serious procedural errors. In particular, strict and complex requirements apply to the submission of a nullity appeal. In collegial‑court proceedings, an appeal may additionally be lodged alongside the nullity appeal; however, in such proceedings, the appeal may be directed only against the sentence and the award of the private‑party claim or property‑related orders.
In proceedings before the district court and before a single judge of the regional court, only the legal remedy of an appeal is available. In such proceedings, an appeal may be lodged on the grounds of nullity, guilt, sentence, civil claims or property‑related orders (‘full appeal’).
Can the sentence change in the appellate proceedings or as a result of the appellate proceedings?
An appeal on sentence is specifically aimed at reducing the sentence imposed at first instance. If the defendant’s appeal is successful, the court reduces the sentence. In certain circumstances, for example, an unconditional custodial sentence may be converted into a suspended custodial sentence.
If the public prosecutor’s office lodges an appeal to the detriment of the defendant (for example, by requesting a higher sentence than that imposed by the first‑instance court), the sentence may indeed be increased, and a suspended custodial sentence may be converted into an unconditional custodial sentence.
In the course of the appellate proceedings, the opposing party is given the opportunity to comment on the other party’s submissions (‘counter‑statement’). In this counter‑statement, the party sets out arguments as to why the appellate court should not follow the appeal.
As a rule, the court may not increase the sentence if a party lodges an appeal exclusively in favour of the defendant. This is ensured by the prohibition of reformatio in peius. This prohibition generally also applies where the first‑instance proceedings must be repeated as a result of a successful appeal.
However, this so‑called prohibition of reformatio in peius does not apply where an appeal has been lodged to the detriment of the defendant (for example, by the public prosecutor’s office). In such a case, a higher sentence is also possible.
Why is legal representation advisable in appellate proceedings?
The lodging of an appeal is subject to strict formal requirements. Already at the stage of filing the notice, it must be clearly specified which legal remedy is being pursued. Moreover, the statement of grounds must be drafted precisely and with a sound legal basis. Errors may result in the appellate court not examining the appeal at all.
In particular, the nullity appeal to the Supreme Court is subject to stringent requirements, and in such proceedings the defendant must be represented by defence counsel (‘mandatory defence’).
If you have received a judgment, you should not lose any time and should immediately clarify which steps are sensible and necessary at this stage. As a law firm specialised in criminal law, we assist you in realistically assessing your options and effectively enforcing your rights.
Appeals: The most important points at a glance.
A criminal judgment can, under certain conditions, be reviewed and does not have to be final. A successful appeal may lead to the judgment being set aside, the proceedings being repeated and/or the imposition of a more lenient sentence.
Which legal remedies are available depends on which court has decided the case: In single‑judge proceedings before the district court or the regional court, a (full) appeal is available, whereas in lay‑judge and jury courts a distinction must be made between a nullity appeal and an appeal.
Strict time limits apply to all appeals: The notice of appeal must be filed within three days of the oral pronouncement of the judgment, and the full statement of grounds must generally be submitted within four weeks of service of the written version of the judgment. Since choosing the correct legal remedy and providing a proper statement of grounds is crucial, you should clarify the next steps at an early stage with an experienced lawyer.
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